Federal Judge Seems Sympathetic To Anti-Corruption Case Against President Trump

Police stand guard outside the Trump International Hotel, blocks from the White House, last year. The hotel has become a centerpiece of lawsuits claiming the president is profiting from the office.

John Minchillo
/ AP

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Originally published on January 26, 2018 1:35 pm

Updated at 1 p.m. ET

Barely a month ago, a federal judge in New York dismissed an anti-corruption lawsuit against President Trump.

But on Thursday, another federal judge, in a different courtroom, gave the same basic argument a much friendlier response.

Judge Peter Messitte, of federal district court in Greenbelt, Md., seemed sympathetic to the assertion that Trump profits from the nexus of his hotels and the presidency.

During a preliminary hearing, the argument against Trump was made by two plaintiffs — the state of Maryland and the District of Columbia. They allege that Trump is violating the Constitution's Emoluments Clause, which bars any president from personally profiting from his dealings with foreign governments — or even U.S. state governments.

"The fact is, Trump is taking money from foreign governments," Maryland Attorney General Brian Frosh told reporters after the hearing. "He's taking money from the United States that's he's not entitled to, and he's also receiving payments from states — all that violate his oath of office."

One major point of contention involves the Trump International Hotel, just a few blocks from the White House. It opened weeks before the election and quickly became a rendezvous point for the incoming president's allies and supporters. The plaintiffs say it is siphoning business from other venues in the Washington area, because big spenders see it as a place where they can influence presidential decision-making.

The Justice Department is defending the president. Department lawyer Brett Shumate argued the lawsuit amounts to an "abstract political disagreement" with the president and much speculation by the plaintiffs.

He said Maryland and the District infer competition between Trump's hotel and others in the Washington metro area and contended the plaintiffs haven't suffered any harm that justifies a lawsuit — essentially that they don't have standing to sue.

Messitte had plenty of questions for both sides.

He urged Loren AliKhan, deputy solicitor general for the District of Columbia, to close a legal loophole by amending the suit, naming Trump as defendant both as president and personally. As filed, it names him only as president. When AliKhan expressed concerns, Messitte briefly pressed the point and then said, "It's your call, not mine."

And when Shumate said, "He only can be sued because he's president," Messitte shot back, "They aren't challenging the presidential function."

The judge wasn't interested when Shumate sought to invoke the previous emoluments case, in New York. He quickly dismissed Shumate's reference to one section of that judge's ruling, saying, "It was just one sentence. There was no analysis at all."

When Shumate raised the ruling again, Messitte told him, "Your argument should stand on its own."

As the hearing ended, Messitte said he would issue a ruling "as soon as I can." That probably means about two months.

Last month, Judge George Daniels in federal district court in Manhattan ruled in a similar case, brought by the watchdog group Citizens for Responsibility and Ethics in Washington along with three plaintiffs from the hospitality industry in Manhattan and Washington.

Daniels dismissed that case, saying it's up to Congress, not citizens, to act on the Emoluments Clause.

"Congress is not a potted plant," he wrote in his opinion. CREW has said there will be an appeal.

But Messitte's more sympathetic questions gave the plaintiffs in the Maryland case more optimism about their prospects.

"We came into this case confident about our standing, and we leave this courthouse even more confident," District of Columbia Attorney General Karl Racine said after the hearing.

The stakes are high. If the District of Columbia and Maryland win on the question of standing, they could seek access to financial records for Trump's Washington hotel — and for other properties as well.

What they ultimately want is a court order telling the president to divest himself of his financial empire. It would be the kind of court order no president has ever faced.

Shumate said divestiture wouldn't stop people from spending money at the Trump hotels. But the plaintiffs hope it would separate the president from the profits.

Copyright 2018 NPR. To see more, visit http://www.npr.org/.

STEVE INSKEEP, HOST:

Critics of President Trump's business activity are trying again to stop it. The president continues to own his global business long after taking office.

RACHEL MARTIN, HOST:

His critics say that creates massive conflicts of interest and violates two clauses in the Constitution. Last month, a judge in New York dismissed a lawsuit saying the plaintiffs did not have standing to sue.

INSKEEP: But yesterday, a similar lawsuit received a friendlier response from Judge Peter Messitte at a preliminary hearing in Maryland. NPR's Peter Overby reports.

PETER OVERBY, BYLINE: The plaintiffs here are the state of Maryland and the District of Columbia. Their lawsuit alleges that Trump is violating the Constitution's Emoluments Clauses, which bar the president from personally profiting from his dealings with foreign governments or even U.S. state governments. Here's Maryland Attorney General Brian Frosh after the hearing.

(SOUNDBITE OF ARCHIVED RECORDING)

BRIAN FROSH: The fact is Trump is taking money from foreign governments. He's taking money from the United States that he's not entitled to. And he is also receiving payments from states all that violate his oath of office.

OVERBY: One major point of contention involves Trump's D.C. hotel. The plaintiffs say it's stealing business from other metro area venues because it's where big spenders can influence presidential decision making. The Justice Department is defending President Trump. DOJ lawyer Brett Shumate said the lawsuit amounts to an abstract political disagreement with the president and much speculation by the plaintiffs.

He said Maryland and D.C. were trying to infer competition between Trump's hotel and others around D.C. and he said the plaintiffs haven't suffered any harm that justifies a lawsuit. In legalese, they don't have standing to sue. Judge Messitte seemed to urge the plaintiffs to amend the suit in ways that might make it more likely to succeed. He finally told D.C. Attorney Loren AliKhan it's your call, not mine. Messitte said he would issue a ruling, quote, "as soon as I can."

KARL RACINE: We came into this case confident about our standing, and we leave this courthouse even more confident.

OVERBY: The stakes are high. If D.C. and Maryland could get standing, they'd be able to seek discovery of financial records of Trump's Washington hotel and other properties as well. What they ultimately want is a court order telling the president to divest himself of his financial empire, the kind of court order no president has ever faced.

Shumate said divestiture wouldn't stop people from spending money at the Trump hotels, but the plaintiffs hope it would separate the president from the profits.